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Home My WebLink About97-00492 ~ ~ ~. \l -. -Q \9 \.i ~ "'" ~ .- ~ .';) .. \J --i \l-. . :; ~ \)-- ~ '- \ll ~ i=,: ..:J -' 1:':- ~'-j., ~.I;' ,.... ~ I":):) :.J~:.." I ~: -.. ..: )::J r I : I;, , .., "I I.L Z ltll -;n... ~5 ) (". u ..-. J , r \ 4, the subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. DATE: 4nIn- ~~~ Kenneth G. Doane, Jr., Esquirll 10#. 78136 Attorney for Defendant, H. nc.2c.IH4U2U l'"xllIlI CERTIFICATE OF SERVICE t, Denise M, Valente, an cmployce for thc law firm Post & Schell, P.C" hercby state that a truc and corrcct copy of the foregoing Certificalc Prcrequisitc to Servicc of a Subpocna was scrved upon all counsel of rccord by first class Unitcd Slalcs mail, postage prcpaid, addressed as follows, on the date sel forth below: Bv First Class U.S. Mail: Richard Estacio, Esquire HEPFORD, SWARTZ & MORGAN 11] North Front Street Harrisburg, PA 17101 POST & SCHELL, P,C, -- ~S:-O-9- ~ Denise M, Va1cnte Dated: " \11 \q1 COMMONWEALTII OF I'ENNSYLVANIA COUNTY OJI CIJMIIEIU,ANIl t SCOTT L. PAXTON lInd MARY PAXTON, his wifc :' File No. 97-492 Civil Tcrm vs. H.C. GABLER, INC. SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: RECORDS CUSTODIAN OF TRUE TEMPER HARDWARE COMPANY (Name of Person or Entity) Within twcnty (20) days after service of this subpocna, you are ordcred by thc court to producc thc following documcnts or things: SEE THE ATIACHED NOTICE OF DEPOSITION at POST & SCHELL. P.C.. 101 North Front Strcct. Harrisburg, Pcnnsv1vania 17101. (Address) You may delivcr or mail Icgib1e copics of thc documcnts or produce things requcstcd by this subpocna, togethcr with thc certificatc of compliancc, to the party making this rcquest at thc addrcss Iistcd abovc, you have the right to scck in advance thc reasonable cost of prcparing the copies or producing thc things sought. If you fail to produce the documcnts or things rcquircd by this subpoena within twenty (20) days after its ~ervice, the party serving this subpoena may scek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Kcnneth G. Doanc, Jr.. ESQuire. POST & SCHELL, P.c. ADDRESS: 101 North Front Street Harrisburg, PA 17101 TELEPHONE: (717) 232-5931 SUPREME COURT ID #: 78136 ATTORNEY FOR: Dcfendant BY THE COURT: DATE: 11/7/'17 I Deputy (Efr. 7/97) POST & SCHELL, P.C. BY: PAUL W. GREGO, ESQUIRE 1.0. # 39701 101 NORTH FRONT STREET HARRISBURG, PA 17101 (717) 232-5931 FAX: (717) 232-9274 SCOTI L, PAXTON, and MARY PAXTON, his wife, CO~y ATfORNEYS FOR DEFENDANT H.C, GABLER, INC. ~ o COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, v. NO, 97-492 H,C, GABLER, INC. CIVIL ACTION - LAW Defendant, JURY TRIAL DEMANDED v. FRUEHAUF, CORP. Additional Defendant. NOTICE OF INTENT TO SERVE A SUBPOENAS TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Defendant, H,C, Gabler, Inc., intends to serve a subpoena identical to the one that is attached to the this notice, You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena, If no objections is made, the subpoena may be served, Kenneth G, Doane, r., Es Attorney for Defendant, . DATE: II/b!n "'- '"'I '-. (J: lr; ':"'; ~ .~ .- "- lU ~ (). t.. , '. L . ~ ( c.' <7. II;'. k ;, !~ i.- -, ,. L'. ,., U ". 6 - -I- ~ ,.l -...) 0 ".. c> ~ ~ r(\ 1':. l. . ...... IJ-. I t'; \)-. \'- Ill: .. () <"() ~ ( " f;:'-' ~-' . ~ 11. . ; '::jj t-;i. (5\ ~ C' ,-... ~ ~ I - l ~ - .- <;J r.i.. L!- :- r- \..' C;' Scott L. Paxton et al 'is. H.C. Gabler, Joe. ;.10, 97 - 4 92 Civil '~ ---, ....-- ;.;ow, Januarv 30 :9-21. !. s:~~~ OP C~G:::'=...!.}_'rn COr...~:-'Yt ?-L. c:J ==---, . . . - .- . c:::-.:= :.:: .::=.: 0: Franklin C.:c::.::r ::J :::::-.::.: =:s ',V:::, =': ..:_,.-.;= ....:.... -....:. 1t .:... -.=t :::.:i :-:.:k ct .... -_-'.='-:=. -~.._- ..~ - - .-~- i~"';:;-it::.~---<~ff~ Se:"~ :t C==:e,ri..:cd C.:u::'7. ?:. .\..~, -. ,. .~C2.Vl.. or S~:"'7i~ So :z:--.v~ DEPUTY :;.-"-=, oi FRANKLIN ~u::y, ?:. =:~_67:;i !g- CDSTI ::':"'-Y1C:: ~m.z.1.G=: ~ 18,00 2,80 4,00 3~= :::c! S".:~.:=e:: be::: ..1~: c.JA;74 __olooo.-___. S 24,80 ._'-..1 SHERIFF'S OFFICE 157 LINCOLN WAY EAST, CHAMBERSBURG, PENNSYLVANIA 17201 (717) 261.3877 SHERIFF SERVICE \ INSTRUCTIONS FOR SERVICE OF PR~CESS PIOOS~~;;';or p~nt PROCESS RECEIPT, and AFFIDAVIT OF RETURN logllJly Do not dolaell onyeoplos ...~'_~~_ ~_~ 1. PLAINTlFFI 51 ~ COUlll NUMIlEII SCOTT L. PAXTON i-DEFENDANTI 51 97-492 CIVIL .__ ., TYPE OF WHIT on COMPLAINT: SERVE . SUMMONS _,__~.. { 5 t~AMl or INl>IVIOLJAL. COMPANY. COIIPOItA1IOU. LtC. 10 sUIVICl' OlllllSCllIPlIotHH 1'1l01'1IHY 10 III IlVlll>. A1fAClltD on SOLO H.C.. GABLER. INC. 6. ADDRESS (Slloet or RFO. Apflltlllunl No. CltV. 0010, Twp.. Stillo anti ZIP Code) . AJ ~u 1580 GABLER ROAD. CIW\BERSBURG, PA 17201 7. INDICATE UNUSUAL SERVICE: II COMMON OF PA I J DEPUTIZE I J OTHEfl Now, 19 _ , I, SHERIFF OF FRANKLIN COUNTY, PA., do hereby depulize Ihe Shorill 01 Counly 10 exocuto Ihis Writ and mako relurn thoreof according to law. This deputation being made altho request and risk 01 Ihe plaintill. '."11".' 1!l 'Il~....\'itj',~iii"j~,- ii:SPECIALINSTRUCTlONS OR OTHEIl INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE: - H.C, GABLER. INC, AM I'M [st rn:;T 31 AFFIRMED nnd subscnbed to bololC mo this Jrd :: (~~2'~ 19 97 MY COMMISSION E XI'II . - ..- 38 I A.CKNOWLEIlGF .11 C[jI'T,QfJ.I~~'g~~unN SI OF AUTHOl1l1EO IS UIlIf^ AirrMr I Publlc . Ch".'~l:'e~,; Jrg. ran "n ounty )~1 ("::" ; 'II'~" ires Nov. 4. 2000 L"",. ~!~~ I i J', ""1 ..'..' t' ,'.' ~-;!",,,tl \ll'''''. :1i,n,:,,:o3-97 SHERIFF OF FRANKLIN COUNTY 1',II"',.Il",.,,,..j ,c~.() 1\'10, ~ ~.. 0\ p~ u~ '- .. l.,r: 1-.' ('.; ~J~ ~ .-, , .2; I ~-J fL.~ L.. 1.( ." cr, CJ :,? &) :':.; " ;,',) -~! I c. Lt.. \. ;:'L1.. i L,_ '. t!. r- :j LJ '- U . , ~ ! ..: Q ~$ E~a " < dd t/l 01 _ e ~ gg ~ r-- - ~ Q loll: ... t:~~j tir: 0-< ::r: . ~ " .~=C!~f j tIl 0 ... .; ~ . z . 1o?i 0- i... ct = WI o ;; ... ~ ... < "' :: :I: . ppt/paxton/comp/February 5, 1997 6. At all times material hereto, Defendant was aware that forklifts would enter into its trailers including that at issue, to move and place storage materials therein. 7. As a result of his accident, Mr. Paxton sustained injuries to his back, including a fracture in the body of the second lumbar vertebrae and soft tissue disfunction which injuries are believed to be permanent. B. As a result of the accident, Plaintiffs have incurred substantial hospital, physician and other related medical expenses and may in the future incur such expenses. 9. As a result of his accident, Plaintiff Scott L. Paxton has incurred a loss of income and loss of earning capacity past and future. 10. As a result of his accident, Plaintiff Scott L. Paxton has suffered severe pain and suffering, loss of life's pleasures, and mental anguish and emotional distress, COUNT I Negligence 11. Paragraphs 1 through 10 are incorporated herein as if fully set forth at length. 12. Defendant was negligent in the following particular respects: - 2 - ppt/paxton/comp/February 5, 1997 a) failing to provide adequate floor strength and support for its trailer; failing to properly inspect the flooring in its trailer; failing to properly test the flooring strength or support in its trailer; b) c) d) failing to design an appropriate floor in its trailer of sufficient strength and support; e) failing to manufacture a floor in its trailer of sufficient strength and support; and f) providing a trailer for storage purposes with insufficient strength therefor; g) failing to utilize appropriate materials in the floor; h) failing to utilize appropriate support beams or support structures for the floor; i) failing to replace the floor; j) utilizing a floor of a strength with insufficient longevity; k) utilizing a floor of insufficient and inappropriate thickness for storage purposes; 1) failing to properly maintain the floor and trailer; and m) failing to warn of the foregoing. - 3 - r- r- - -' ,0" ' , . - ttlO <.1' -l :-.'1 u-. .. .- U',' ,_. . c.. c-.' UJ' "-, =-!\ L ee- l' .- u- \,'. r- j 0 G" NEW MAlTER 2, The PlaintitT may hllve failed to statc a cause of ac:ion upon which relief can be granted. 3. The applicable Statute of Limitations may have expired prior to the institution of this action. 4. Answering Additional Defendant was not negligent. 5. Any acts or omission of Answering Defendant alleged to constilute negligence were not substantial causes or factors of the subject incident and/or did not result in the injuries and/or losses alleged by the PlaintitT. 6. The incident and/or damages described in PlaintitT s Complaint may have been caused or conlributed to by the PlaintitT. 7. The negligent acts or omissions of other individuals and/or entities may have constituted intervening, superseding causes of the damages and/or injuries alleged to have been sustained by the Plaintiff. 8. The PlaintitT may have assumed the risk. 9. The PlaiotitT may have been contributorily negligent. 10. The incident, injuries and/or damages alleged to have been sustained by the P1aintitT were not proximately caused by Answering Defendant. II. Plaintiffs claims as set fonh in the Complaint were caused by the voluntary assumption of the known risk by the P1aintitT, and Plaintiff is thereby barred by said assumption of risk from any recovery against Answering Defendant. 12. The injuries and damages alleged in the Complllint were proximately caused by the actions or omissions of third parties othcr than Answcring Dcfcndant of which Answering Defcndant had no control and for whosc conduct it is not rcsponsiblc. 13. The product in question was impropcrly maintllincd lInd it was that lack of carc which cllused thc subjcct accidcnt. 14. Any product allcgcdly dcsigncd, manufactured and/or sold by Answcring Defendant was substantially modified after it Icft Answcring Dcfcndant's control and was not in the samc condition at thc time of the accident as whcn it 1cft Answering Dcfcndant's control. 15. Any injurics sustained by Plaintiff was causcd by thc unforesceable misuse/misapplication of the product by Plaintiff and/or third partics. 16. Answering Defendant never brcached any duty owed to Plaintiff, if any was owed, and never failcd to maintain any standards, obligations or responsibilities insofar as any duty to do so cver existed. 17. Answering Defendant dcnics thc cxistence of warranty to Plaintiff, express or implied, associated with thc product alleged to be the subject mattcr of this suit. 18. Rccovcry on the claims alleged in the Complaint is barred or diminished by Plaintiffs failurc 10 mitigatc his damagcs. 19. If thc Plaintiff suffcred the injurics and damages allcged herein, which is denied, then those injuries were caused in whole or in part by thc ncgligence of PllIintifT, and rccovery herein is barred or diminished in accordancc with the Pennsylvania Comparutivc Negligcncc Act. 20. The Plaintiff lacks capllcity to bring somc or all of thc claims of which rclief is sought hercin. 21. Plaintiff disregarded all warnings and instructions, of which Plaintiff was aware. I C'I ~ - ~ ::J 0:;( :r: :>:.- ( -t j~ Q.. o~ tn ~1!2 - 0-1 ~ g IMGJ ~ oq ~o.: tl. " d 0 0\ . , , . z ... ~~ IN ~~ ~! ~ all '" !':i ~ ~ U N ~ .... - .... 0 }l( ~ _ ltct~c8~,:; 0< = . z or. ~~"'Owo < ;;li" It: c.: Q., i: ... en ~ .; ~ Q - ~ ~ c.:: = ~ o . ~ ~ ... == :c ppt/paxton/reply/August 11, 1997 SCOTT L. PAXTON, and MARY PAXTON, his wife, plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 97-492 - CIVIL TERM vs. CIVIL ACTION - LAW H.C. GABLER, INC. Defendant JURY TRIAL DEMANDED PLAINTIFFS' REPLY TO NEW MATTER OF DEFENDANT H.C. GABLER, INC. 2 . Denied. This averment sets forth a conclusion of law to which no response is required. 3 . Denied. This averment sets forth a conclusion of law to which no response is required. 4. Denied. This averment sets forth a conclusion of law to which no response is required. 5 . Denied. This averment sets forth a conclusion of law to which no response is required. 6 . Denied. This averment sets forth a conclusion of law to which no response is required. To the extent a response is required, it is specifically denied that the incident and/or damages described in Plaintiffs' Complaint was caused or contributed to by Plaintiffs. ppt/paxcon/reply/August 11, 1997 7, Denied. This averment sets forth a conclusion of law to which no response is required. 8. Denied. This averment sets forth a conclusion of law to which no response is required. 9. Denied. This averment sets forth a conclusion of law to which no response is required. 10. Denied. This averment sets forth a conclusion of law to which no response is required. 11. Denied. This averment sets forth a conclusion of law to which no response is required. 12. Denied. This averment sets forth a conclusion of law to which no response is required. 13. Denied. This averment sets forth a conclusion of law to which no response is required. To the extent a response is required, it is specifically denied that the product in question was improperly maintained and that it was that lack of care, the same of which is denied, which caused the subject accident. 14. Denied. This averment sets forth a conclusion of law to which no response is required. To the extent a response is required, it is specifically denied that any product allegedly designed manufactured and/or sold by Defendant was substantially modified after it left said Defendant's control and was not in - 2 - ppt/paxton/reply/August 11, 1997 the same condition at the time of the accident as when it left said Defendant's control. 15. Denied. This averment sets forth a conclusion of law to which no response is required. To the extent a response is required, it is specifically denied that Plaintiffs' injuries were caused by any unforeseeable misuse/misapplication of any product by Plaintiffs and/or third party. 16. Denied. This averment sets forth a conclusion of law to which no response is required. 17, Denied. This averment sets forth a conclusion of law to which no response is required. 18. Denied. This averment sets forth a conclusion of law to which no response is required. 19. Denied. This averment sets forth a conclusion of law to which no response is required. 20. Denied, This averment sets forth a conclusion of law to which no response is required. 21. Denied. This averment sets forth a conclusion of law to which no response is required. To the extent a response is required, it is specifically denied that Plaintiffs disregarded any warnings and/or instructions. - 3 - attached as Exhibit "A." , ,(, 2. Additional Defendant, Fruehauf Corp., an Indiana corporation which does business at Route 230, Middletown, Pe:msylvania, 3, At all material times, Additional Defendant through its agents, servants, representatives, employees, and/or subsidiaries, was engaged, directly or indirectly in the manufacture, production, salc, distribution, supply, and marketing of trailers within this commonwealth for the purposes of having the same resold therein to the mcmbers of the public. 4. If it should be provcd that original Defcndant sold, marketed, or distributed this trailer, , , , ,. original Defendant avers that prior to its purchase or distribution by original Defendant, the trailer was supplied, manufactured, produccd, sold, and/or marketed by Additional Defcndant. 5, If it should be proved that original Defendant sold, markcted, or distributed the trailer, , I ;i original Defendant avcrs that, at the timc of the accident involvcd herein, the trailer was without substantial change from thc condition in which it was sold and supplied to original Defendant. 6. At all relevant times, Additional Defendant performed the acts of negligence, breach of warrantee, and/or strict liability which arc described in Plaintiffs' Complaint. The original Defendant hcreby incorporates by reference all such allegations of negligence, breach of warrantee, and strict liability against the Additional Defendant as so the same were set forth fully herein, 7. The negligence, breach of warrantee, and/or strict liability of the Additional Defendant was the sole cause of any damages that Plaintiff sustained, or, alternative, the negligence, breach of warrantee, and/or strict liability of thc Additional Defendant was a concurrent and contributing cause of any damages that Plaintiffs' sustained for which the original Defendant seeks indemnity and/or I ~ , " " VERIFICATION I, DAVID BURGER, the ----........ , of H.C. GABLER, INe" a Defendant in the written action and verify that the statements made in the foregoing Joinder Complaint are true and correct to the best of my knowledge, information and belief. The undersigned understands thatthc statements therein are made subject to the p,.nalties of 18 Pn,C.S. ~4904 relating to unsworn falsification to authorities, q~tI)) DAVID BURGER, ~ H.C. GABLER, INC. -. of .Q; ,:"", ~1 ~ ""'- <;) " >- ,... rr; '. i~ c.; t, ,(', ( ( '. f' ( , ..... C)'_ r:. " ! I ii' , .. I" ~ , t._. e:; f'~ , U .' CO' U '1 ~ ~ UI1/0/IVJ.Jl I POST & SCHELL, P.c. BY: PAUL W. GREGO, ESQUIRE 1.0. IJ 3970 I 101 NORTH FRONT STREET HARRISBURG. PA ]7101 (7] 7) 232-5931 FAX: (717) 232-9274 SCOTT L. PAXTON, and MARY PAXTON, his wife, ATTORNEYS FOR DEFENDANT H.C. GABLER. INC. l ~ COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, v. NO. 97-492 H.C. GABLER, INC. Defendant, CIVIL ACTION - LAW v. JURY TRIAL DEMANDED FRUEHAUF, CORP. Additional Defendant. CERTIFICATE OF SERVICE I, Denise M. Valente, an employee for the law firm Post & Schell, P.c., hereby state that a true and correct copy of the foregoing Rule to Show Cause was served upon all counsel of record by first class United States mail, postage prepaid, addressed as follows, on the date set forth below: Bv First Class U.S. Mail: Andrew K. Stutzman, Esquire HEPFORD, SWARTZ & MORGAN III North Front Street Harrisburg, P A 1710 I POST & SCHELL, P.C. Dated: )0\\5\91 ~CLwd:-o Denise M. Valente ~ CI ~ .~ '" ..... N :~) 04'C ~r.J 0.. )..... :<. (-)(:t. [;:" L...... u.. r:\:J ~t; '" ~ ,:(-i II I. ,-;,.I' .Il. ;'j: ~~ _J". ::-"... u:.: l!il'.J 1" C:. :,,:.1 ~ 1.. ,. :.c u. r- :3 0 IT' (.J ;z: ! < 0 '" 0 ~ ~ ~ ~ E e all III ... < ~ G:!:! ~ ~ > .. - 0"''::.2 ~ ;:: . < ~ . . w ! . j ~ . q 0 moo. . . z ,; . Q . ~ '" = " ~ . ~ . . 0. . < "' :I: ::c . . . , . . In;' 'i 1'1'1! ppt!paxton!ans3/November 6, 1997 J . i ,A 6. Upon investigation and as conceded by Defendant, Fruehauf Corp. has been in bankruptcy, and, if not yet liquidated, remains there at this time. 7. Accordingly, any joinder of Fruehauf Corp. as a party to Plaintiffs' action would automatically subject this action to an automatic stay, ~ 11 U.S.C. ~362, and significantly prejudice Plaintiffs thereby. 8. Likewise, discovery herein has been substantially completed and Plaintiffs would be significantly prejudiced by any delay herein. 9. In addition, upon investigation and as also admitted by Defendant, Fruehauf has been liquidating its remaining assets and disbursing same. Indeed, the telephone line at Fruehauf's former Middletown, Pennsylvania facility, wherein Defendant avers that Fruehauf "does business," see Defendant's Joinder Complaint, '2, has been disconnected. Likewise, the telephone line at Fruehauf's former headquarters in Indianapolis, Indiana is inoperable. 10. Upon investigation, no successor corporation to Fruehauf has been identified. 11. Accordingly, joinder of Fruehauf as an Additional Defendant herein would not provide any recovery therefrom. 12. Moreover, -2 - , POST & SCHELL, )'.C. BY: AMY L. CORYER, ESQUIRE I.D. # 82718 240 GRANDVIEW A VENUE CAMP HILL, PA 17011 (717) 731.1970 FAX: (717 731-1985 SCOTT L. PAXTON, and MARY PAXTON, his wife, A1TORNEYS FOR DEFENDANT II.C. GABLER, INC. COURT OF COMMON PI.EAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plainliff. v. NO. 97-492 H.C. GABLER, INC. CIVIL ACTION .LA W Defendant, JURY TRIAL DEMANDED v. FRUEHAUF, CORP. Additional Defendant. CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prercquisite to scrvicc of a subpocna for documcnts and things pursuant to Rnlc 4009.22, Defcndant certifics that: . 1. a noticc of intcnt to serve thc subpocnas with a copy of thc snh(locna attachcd thcrcto was mailcd or dclivcrcd to cach party :It Icast twcnty days prior to the datc on which thc suhpllcna is sought to hc scrl'ctl, 2. a copy of thc noticc of intcnt, iuclutling thc propllscd suhpllcna. is attachcd to this ccrtificatc. 3. no ohjcction to thc suhpocna has hccnl'ccciwd, allll t . I \ Q CERTIFICATE OF SERVICE I, Sharry D. Scmans, an cmploycc for thc law finn Post & Schcll. P.C., hcrcby slate thai a Iruc and corrcct copy of thc forcgoing CERTIFICATE PREREQUISITE TO SERVICE OF SUBPOENA was scrvcd upon all counscl of rccord by first class United Stalcs mail, postagc prcpaid, addrcssed as follows, on thc datc sct forth bclow: By First Class U.S. Mail: Richard Estacio, Esquirc Hepford, Swartz & Morgan 111 North Front Strcct Harrisburg, P A 1710 I Joseph D. Shelby. Esquire Eckert, Seamans, Chcrin & Mcllott One South Market Strcct PO Box 1248 Harrisburg, PA 17108 POST & SCHELL, P.C. )4.( Sharry D. Datcd: June:}} 1999 t . - " , .. , ~: , -, , .' , (oj I; , , .r. , ; " ,-- " :~. ( c. ~_ .i , , , '" " , <, ~ ; - , ." , J , ) 'J. , , ( , :.J t, ,~ , :.J t, POST 0. SCHELL, P.C. ATTORNEYS AT LAw 240 GRANOVIEW AVENUE CAMP H,cc. PA I 70 I I 17171731.1910 rAC~'MI"'C 1117113 I.j 90S 1600 .JOtlll f' Kt'mlO' Ul..\lO PtlIUllDll-l-'..I,l, 1'.. I Q, OJ 1400 Ii! I ~I 561.1000 "A~ IZI!)1 5671444 ADAM!> PI..AC( :;'Urn::J 10' ..."nt ttOH~.L ROAD VOORH[[!j t~.J 0604 J 18501 cz 7 UQOO rAll. 165CJ CO!" 0145 I I ~..!.> ~ crOAIl cneST flDULC/Ano :';UI1[ 300 "'LLUITO"''' PA IOIO:! 101014330lQ3 fAll. CClOl4J3 31HZ nH: OtRK~tlIR[ ~UrTt Z05 50 I 1'v",:;;..,ltGlOtl ~m(ET R(.AOlt~O PA I g003 tCI01375,ZZ56 tAll. ICIO, 375 Zl('>J 18":>7 ""LI..IA'" "tWi WAr ,. 0 no... t OZ.16 l.oIotlCA::'Ttlf PA 110050;!48 t711' ZOt45,J;: fAX 11171 ZOI 1000 Scptcmbcr 18, 2000 SHARRY SC......NS t11710IZ.eC>11 !)51O......'tiJ)'''o.1~..l~..(.'-'.. Prolhonotary Cumbcrland County Courthousc Square Carli sic, PA 17013 RE: Paxton v. H.C. Gabler v Fruehauf No. 97-492 Dcar Sir/Madam: Encloscd plcasc find thc original and onc copy of a Motion to Dccm Ccrtain Facts as Admissions, togcther with scvcral copies of the proposed Ordcr and return cnvelopcs for all partics. Also cncloscd is the original and two copics of thc supporting Bricf. Also, I havc cncloscd a copy ofthc facc shcct ofthc motion. Would you kindly timc stamp thc face shcet and rclum it to mc in onc ofthc rctUnl cnvclopcs addrcsscd to Post & Schell. Thank you for your assistancc in this rcgard. Vcry truly yours, ~~ Paralcgal SDS/mys Enclosurc ce: Richard Eslaeio, Esquirc Joseph D. Shclby, Esquirc t ; hi. nt 1367. Thnt Court nlso found Ihc fncts contnincd inthc rcqucstto bc ndmittcd. Inthc instnnt cnsc, Plnintifls did cxnclly Ihnl. Thc I'bintiffs chosc to ignorc thc Moving Dcfcndnnl's Rcqucst for Admissions nnd did nol nnsll'cr or objcctlo thc Rcqucsl for Admissions within Ihc rcquircd thirty dnys. Thcrcforc, thc facts conlnincd inthc Rcqucst for Admissions must bc dccmcd ndmittcd. IV, CONCLUSION: Thc I'lninti fTs did nol nnsll'cr or objcctto thc Moving Dcfcndnnt's Rcqucst for Admissions within the rcquircd thirty dnys. In fncl, to dntc, thc Moving Dcfcndant hns not bccn providcd with I'lnintiffs' writtcn nnswcrs or nny objections. Accordingly, ns n nmttcr of In 11', Ihc following fncts arc dccmcd ndmittcd: a. Plnintiffs hnvc no evidcncc tlmtl'laintiff Scott Pnxton regularly workcd overtimc for thc two years prcccding thc accidcnt on Junc 11, 1996. b. Thcrc nrc no writings, rccords, pny stubs, nnd/or documcnts supporting Plainti ff Scott Paxton's contcntion thnt hc rcgubrly 1I'0rkcd ovcrtimc for Ihc Iwo ycnrs prcccding thc accident on Junc II, 1996. c. PlaintifTs hnvc no cvidcncc Ihal PbintifTScott Paxton was unnblc to work ovcrtimc allcr thc accidcnt on Junc 11, 1996, ns a result of injurics sustnincd inthnt nccidcnt. d. Thcrc arc no mcdicnl rccords nnd/or doctors' notcs supporting PlnintifT Scott Paxton's contcntion Ihat hc could not work ovcrtimc nllcr thc nccidcnt on Junc 11, 1996, ns a result ofthc injuries he nllcgcdly sustained in thc nccidcnl. c. Plninti ffs hnvc no cvidcncc tlmt Plninti ff Scott Pnxton is currcnlly unablc to work ovcrtimc as a rcsult of thc injurics hc sustnincd inthc accidcnt on June 11, 1996. Sf? 1 9 2000~ POST & SCHELL, I'.C. BY: AMY L. CORYER, ESQ. J.D. 1182718 240 GRANDVIEW A VENUE CAMP HILL, PA 17011 (717) 731-1970 FAX: (717) 731-1985 SCOTT L. PAXTON, and MARY PAXTON, his wifc, ATTORNEYS FOR DEFENDANT II.C. GABLER, INC. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA Plaintiff, v. NO. 97-492 H.C. GABLER, INC. CIVIL ACTION - LAW Defendant, JURY TRIAL DEMANDED v. FRUEHAUF, CORP. Additional Defendant. MEMORANDUM OF LAW IN SUPPORT OF ORIGINAL DEFENDANT H.C. GABLER,INC.'S MOTION TO DEEM CERTAIN FACTS AS ADMISSIONS Moving Defcndant, H.C. Gahlcr, Inc., respcctfully suhmits this Mcmorandum of Law in support of its' Motion to Dccm Ccrtain Facts as Admissions for Plaintiffs' failurc to rcspond or object to a Request for Admissions. I. STATEMENT OF FACTS: On or ahout Fehruary 7, 1997, the Plaintiffs tiled a Complaint in negligcnce against the Moving Defendant, H.C. Gahler, Inc., for an allegcd incident that occurrcd on June II, 1996. Plaintiff, Scott L. Pilxton, has asserted a signilicalll chlim for loss of overtimc carnings. Dcspite numerous requests for documcntation to support this allcgcd loss of overtime carnings, Plaintiffs nevcr provided such t , .' documcntation to ~oving Dcfcndant's counsel. As part of discovcry, Moving Defcndant servcd Plaintiffs with a Rcqucst for Admissions on or about August 14, 2000. The Plaintiffs havc not respondcd to or objectcd to thc Rcqucst for Admissions to date. II. STATEMENT OF OlJESTION PRESENTED: DOES PLAINTIFFS' FAILURE TO RESPOND OR OBJECT TO DEFENDANT'S REOUEST FOR ADMISSIONS DEEM THOSE FACTS ADMITTED? (Suggestcd Answcr: Yes) III, ARGUMENT: On or about August 14,2000, Moving Dcfcndant scrvcd Plaintiffs with a Rcqucst for Admissions pursuant to Pa.R.C.P. 94014. (A copy ofthc Request for Admissions with co vcr letter and Ccrtificatc of Scrvicc is attach cd to thc Motion as Exhibit "A"). Rcsponscs wcrc due on Scptcmber 13, 2000. Pursuant to Pa.R.C.P. 94014, thc rcqucstcd mattcr is dccmcd admitted unless, within 30 days aftcr scrvicc ofthc rcqucsts, writtcn answers or objcctions arc scrvcd by thc party to whomthc rcqucsts arc dircctcd. ~ Pa.R.C.P.94014. Plaintiffs did not providc writtcn answcrs orobjcctions within the rcquircd thirty days. In Innovatc. Inc. v. United Parccl Service, 418 A.2d 720 (Pa.Supcr. (980), thc Court statcd: "A party on whom rcqucsts for admissions of fact arc scrvcd nll1s thc risk thatthc facts as sct forth in the rcqucst for admissions will bc conclusivcly binding on him ifhc chooses not to file an answcr to the request for admissions or filc objections to the rcqucsl." hi. at 720. Thc Court found the facts containcd in thc request to bc admittcd. Also, in Bymcs v. Buss Automalionlnc., 609 A.2d 1360 (Pa.Supcr. 1992), thc Court held that: "Thc rulc clearly slates thatthc party rccciving thc rcqucstmust rcspond by answcring or objecting. In this casc, New Buss chosc to ignorc thc rule and runthc risk of having thc facts contained inthc rcqucst dccmcd admittcd." Ill. at 1367. That C!lurt also found thc facts containcd inthc rcqucstto bc udmittcd. Inthc instunt cusc, Plaintiffs did cxactly that. Thc Plaintiffs chosc to ignorc thc Moving Dcfcndant's Rcqucst for Admissions and did not unswcr or object to thc Rcqucst for Admissions withinthc rcquircd thirty days. Thcrcforc, thc fucts containcd inthc Request for Admissions must bc dccmcd admittcd. IV, CONCLUSION: Thc Plaintiffs did not answcr or object to thc Moving Dcfcndant's Rcqucst for Admissions within thc rcquircd thirty days. In fJct, to dutc, thc Moving Defendant has not bccn provided with Plaintiffs' written answcrs or any objections. Accordingly, as u mattcr of luw, thc following fucts arc dccmcd admitted: a. Pluintiffs havc no cvidcncc that Plaintiff Scott Paxton rcgularly workcd ovcrtimc for thc two years prcccding the accidcnt on Junc II, 1996. b. Thcrc arc no writings, rccords, puy stubs, and/or documents supporting Plaintiff Scott Paxton's contcntion that hc rcgularly workcd ovcrtimc for thc two ycars prcccding thc accidcnt on Junc 11, 1996. c. Pluintiffs have no cvidcncc that PluintiffScott Paxton was unablc to work ovcrtimc aftcr thc accidcnt on Junc 11,1996, us a result of injuries sustaincd in that accident. d. Thcrc arc no medical rccords andlordoctors'notcs supporting Plaintiff Scott Paxton's contcntion thut hc could not work ovcrtimc allcr thc uccidcnt on Junc 11, 1996, as a rcsult ofthc injurics he allcgcdly sustaincd in thc accidcnt. c. Plaintiffs havc no cI'idcncc that Pluintiff Scott Paxton is currcntly unablc to work ovcrtimc us a rcsult ofthc injurics hc sustuincd inlhc uccidcnt on Junc II, 1996. hi. at 1367, That C~urt also found thc facts containcd in thc rcqucstto bc admittcd. In the instant casc, Plaintiffs did cxactly that. Thc Plaintiffs chosc to ignorc thc Moving Dcfcndant's Rcqucst for Admissions and did not answcr or objcclto thc Rcqucst for Admissions withinthc rcquircd thirty days. Thcrcforc, thc facts containcd inthc Rcqucst for Admissions must be dccmcd admittcd. IV, CONCLUSION: Thc Plaintiffs did not answer or object to thc Moving Dcfcndant's Rcqucst for Admissions within thc rcquircd thirty days. In fact, to datc, thc Moving Dcfcndant has not bccn provided with Plaintiffs' writtcn answcrs or any objcctions. Accordingly, as a mattcr oflaw, the following facts arc deem cd admitted: a. Plaintiffs havc no cvidencc that Plaintiff Scott Paxton regularly workcd ovcrtimc for the two ycars prcceding thc accident on Junc I\, 1996. b. Thcrc arc no writings, rccords, pay stubs, and/or documents supporting Plaintiff Scott Paxton's contention that hc rcgularly worked ovcrtimc for the two years prcccding thc accidcnt on Junc 11, 1996. c. Plaintiffs havc no cvidencc that Plaintiff Scott Paxton was unablc to work ovcrtimc aftcr the accident on Junc 11, 1996, as a result of injurics sustained in that accident. d. Thcrc arc no mcdical rccords and/or doctors' notcs supporting Plaintiff Scott Paxton's contcntion that hc could not work ovcrtimc aftcr thc accident on June II, 1996, as a rcsult ofthc injuries he allcgcdly sustaincd in the accidcnt. c. Plaintiffs havc no cvidcncc that Plaintiff Scott Paxton is currently unablc to work ovcrtimc as a rcsult ofthc injurics hc sustaincd inthc accidcnt on JUBC II, 1996. ~ r f. . Thcrc arc no mcdical rccords and/or doctors' notcs supporting Plaintiff Scott Paxton's ~ !. contcntion that hc cannot currcntly work ovcrtimc duc to thc injurics hc sustaincd inthc accidcnt on June 11, 2996. WHEREFORE, Moving Defendant, H.C. Gabler, Inc.. respectfully movcs this Honorablc Court to entcr a Court Ordcr deeming thcse facts as admissions. Respectfully Submittcd, Post & Schell, P.C. By: n>>UI ;i (],~.; AMY ~. CORY ,ESQ. Attorncy for Moving Dcfendant H.C. Gablcr, Inc. Datcd: q Iii lot) SCOTT L. PAXTON and MARY PAXTON, his wifc, PlaintilT.~ IN TilE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA CIVIL ACTION - LAW vs. H. C. GABLER, INC., Dcfcndant 97-0492 CIVIL vs. FRUEHAUF CORPORATION, Additional Dcfcndant JURY TRIAL DEMANDED IN RE: MOTION OF DEFENDANT H.C. GABLER. INC.. TO DEEM CERTAIN FACTS AS ADMISSIONS ORDER AND NOW. this "2 r day ofScptcmbcr, 2000. a rulc is issucd upon thc plaintiffs to show causc why thc relicf rcqucstcd in thc within motion ought not to bc grantcd. This rulc rcturnablc twenty (20) days aftcr scrvicc. BY THE COURT. ~ :f .~~ rvr;;< ~ <(- 4. On or about August 14, 2000, Moving Dcfcndant scrvcd PlaintilTs with a Rcqucst for Admissions pursuant to Pa.R.C.P. *4014. (A copy ofthc Rcqucst for Admissions with covcr Icttcr and Ccrtificatc ofScrvicc is attachcd hcrcto as Exhibit "A"). 5. Pursuant to Pa.R.C.P. *4014,thc rcqucstcd mattcr is dccmcd admittcd unlcss, within 30 days aOcr scrvicc ofthc rcqucsts, wrillcn answcrs or objcctions arc scrvcd by thc party to whom the rcqucsts arc dircctcd. 6. Plaintiffs did not providc writtcn answcrs or objcctions within thc rcquircd thirty days. 7. To datc, Moving Dcfcndant has not bccn providcd with Plaintiffs' writtcn answers or any objcctions. 8. Accordingly, thc following facts arc dccmcd admittcd: a. Plaintiffs havc no cvidencc that Plaintiff Scott Paxton rcgularly worked ovcrtimc for the two ycars prcceding thc accidcnt on Junc 11, 1996. b. Thcrc arc no writings. rccords, pay stubs, and/or documcnts supporting PlaintilTScott Paxton's contcntion that hc rcgularly workcd ovcrtimc for thc two years prcccding thc accidcnt on Junc 11, 1996. c. Plainti ffs havc no cvidcncc that Plainti ff Scott Paxton was unablc to work ovcrtimc aOcr the accidcnt on Junc 11, 1996, as a rcsult of injuries sustaincd in that accidcnt. d. Thcrc arc no mcdical rccords and/or doctors' notcs supporting Plaintiff Scott Paxton's contcntion that hc could not work ovcrtimc aOcr thc accidcnt on Junc 11, 1996, as a rcsult ofthc injurics hc allcgcdly sustaincd in thc accidcnt. c. PlaintilTs havc no cvidcncc that Plaintiff Scott Paxton is currcntly unablc to work ovcrtimc as a rcsult of the injurics hc sustained in the accidcnt on Junc 11, 1996. POST & SCHELL, I',C. BY: AMY L. CORYER, ESQ. J.D. 1182718 240 GRANDVIEW A VENUE CAMP IIILL, PA '17011 (717)731-1970 FAX: (717)731-1985 SCOTT L. PAXTON, and MARY PAXTON, his wifc, A'ITORNEYS FOR DEFENDANT ILC. GABLER, INC. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, v. NO. 97-492 H.C. GABLER, INC. CIVIL ACTION - LA W Defendant, JURY TRIAL DEMANDED v. FRUEHAUF, CORP. Additional Dcfcndant. DEFENDANT H.C. GABLER, INC.'S REOlJEST FOR AJ>l\lISSIONS DIIU:Cn:D TO PLAINTIFFS PLEASE TAKE NOTICE: Pursuanllo Pa. R.C.P. 4014 you arc hcrcby rcquircd to admit or deny thc truth of thc f"lIowing statcmcllls, or othcrwisc comply with thc rule, within 30 days. You arc rcqucstcd to admil for thc purposcs of thc pcnding action only the (ruth of the following mattcrs: I. Plaintiffs havc no cvidcncc that Plaillliff Scott Paxton rcgularly worked overtime for thc two ycars prcccding thc accidcnt on Junc II, 1996. ANSWER: ADMIT: DENY: f 2. Thcrc arc no writings, rccords, pay slubs, and/or documcnls supporting PlaintiffScoll Paxton's contcntionthal hc rcgularly workcd ovcrtimc for thc two ycars prcccding thc accidcnt on Junc 11,1996. ANSWER: ADMIT: DENY: If dcnicd, plcasc allach copics of the writings, rccords, pay slubs and/or documcnts. 3. Plaintiffs havc no cvidcncc that PlainliffScOll Paxton was unablc to work ovcrtimc aOcr thc accidcnt on Junc II, 1996, as;1 rcsult ofinjurics sustaincd in that accidcnt. ANSWER: ADMIT: DENY: 4. Thcrc arc no mcdical rccords U!uVor doctors' notcs supporting PlaintiffScoll Paxton's contcntion that hc could not work ovcrtimc aOcr thc accidcnt on Junc 11, 1996, as a rcsult of the injuries hc allcgcdly sustaincd inthc accidcnt. ANSWER: ADMIT: DENY: Ifdcnicd, plcasc allach copics ofthc mcdical rccords and/or doctors' notcs. 5. Plaintiffs havc no cvidcncc thaI PlaintiffScOll Paxton is currcntly unable to work ovcrtimc as a rcsult ofthc injurics hc sustaincd inthc accident on Junc II, 1996. ANSWER: ADMIT: DENY: 6. Thcrc arc no mcdical records and/or doctors' notcs supporting Plaintiff Scott Paxton's contention that he cannot currcntly work ovcrtimc duc to thc injurics hc sustained inthc accidcnt on June II, 29%. ANSWER: ADMIT: DENY: If dcnicd, plcasc attach copics ofthc mcdical rccords and/or doctors' notes. ?;: r- ~ ., '" ,7 t,.. ~'i <1; U-,C! - - .....' -.- t".) ~ : :"':: C. 0< . ~: ~;. ::::.. -- :-!2 I..', (7' :. r.f) c: J~ , ,~. ;?-' r-__ <;'uJ - LIJ ':~c.. i". V: ::5 ". ,') 0 .:.:J Cl .. f:' .~ C , , ~.-. '."': . " J -- " J t- . ~... .-., J ...) ;,) ~ '" oo ~ !!i ml;:; ~ Od~ .. -< ~~ '" z 00 ~ .. 00 UJo:< .... ~ >- a:l!l:o III m III z .. Z~ . z ;:: w UJ ~ '" ':: ~~ <.:i 0: :J ~ = '" '" UJ - 0: ~ 0: U ~ ::J .... , - ..I '. .. PER DIEM, INC. i. /. , I~j " i "';. /'1. l' v,. I....' , -,,! It, "ohl .. ./;' V 14",,".. ED St't1tl 4 ~..) Lt1bo,II Stanley Askin, M.D. -~--- .- September 23, 1997 Mr. Rick McCracken Stetler & Gribbin Attorneys at Law P.O. Box 2588 York. PA 17405 ..- RE: Scott Paxton Dear Mr. McCracken: Mr. Paxton presented to my office on September 23. 1997. He is a 34 year old left hand dominant gentlemen who is a "shipping/inventory specialist" and he has had such activities for about 10 1/2 years and he is currently working. He tells me that he had been normal before the date of injury which is recorded as June 11, 1996. On that date he was operating his three wheel forklift, a device upon which he apparently sits. He was in a slOrage trailer and the noor gave way with one of the wheels going through the noor causing his forklift to stop suddenly. He was not thrown backwards but rather apparently he went up and down on his seal. Though he had some discomfort that seemed not to be the immediate provocation of his difficulty. He tells me that when he alighted from the forklift and walkcd out of the trailer that he fclt a pop in his lowcr back. His employer took him 10 a medical carc facility whcrc x-rays wcrc obtained and there was apparently some question about a fracture of the L2 vertcbrac. Becausc of that qucstion he was transported on a back board to the Harrisburg Hospital whcre he was kept overnight for obscrvation. Hc apparcntly had not bccn placcd in any supportive devices or corscts or braces at thattimc. Hc did cvcntually comc to thc care of Dr. Kalcnak. Dr. Kalenak apparcntly rcfcrrcd him to a Dr. DcMuth with whom hc continucs to treat at the prescnt timc. Mr. Paxton rccalls rcturning to work on a part-timc basis in Dcccmber, 1996 and thcn full timc by January, 1997. Though working fulltimc hc apparcntly has becn accommodatcd with thc avoidancc of ovcrtimc activitics bccausc of his offcr of pcrsisting difficulty. 1600 HUMMEL AVENUE, CA~tP IIILL. PA 17011 P.O. BOX 9. CAMP IlILL. PA 17001.0009 PIIONE (717) 730.9321 FAX (7171 730.9390 RE: DATE: PAGE: I Scott Paxton September 23, 1997 2 His current complaints are that he has discomfort and the discomfort is very specifically in the lumbosacral area (he points). He did indicate some soreness on lhe date of examination. He tells me that he has discomfort as well to the right of the midline a bit more so than the left of the midline and the upper buttock area. He tells me that his feet go numb at times and apparently over the lasl week or so, he has experienced such including the date of examination. His general health is indicated as being good olherwise. He is not diabetic. He does smoke cigarettes al a rate of I 1/2 packs per day. His current weighl is 200 pounds al 5') 0" in height. He has no history oi any motor vehicle accident associat~d injuries. He has no history of any broken pones a~ an adult though as a child h~ probably sustained a fraclure of his nose and of both collar bones. He does recall having surgery 10 his right knee in 1990 this being an intracruciate ligament reconstruclion. The only other surgeries were appendectomy and lonsillectomy. Medication usage has been Naprelan. of which he did take one pill on the date of this examination. He has available Tylenol #3 which he last consumed on Seplember 19,1997. Apparently such usage is associaled with some constipation. Aside from the constipalion he offers no difficulty wilh respecl to coughing, sneezing. deification, or bladder function. Mr. Paxton is a pleasant gentleman who does have some gray hair on his head and in his muslache. He is well developed and well nourished with a. pot belly. , ~ I He did not bring wilh him nor wear any orthopedic appliances. He does point out his area of discomfort which is in the midline more or less over the lumbosacral juncture. When he tilled toward the left he indicated some discomfort in the right sacroiliac area. He pcmlitted me to pcrcuss slightly over his back and from the neck down to the sacrum lhere were t\\.o locations of discomfort. one being at the lumbosacral juncture and the being in the mid. lhoracic spine in the midline. I did not detect any spasticity of lhe paravertebral muscles. When asked to bend as far as he could wilhout hurting himself he showed 70' of forward nexion and 20' side bending to either side again with ~discomfort offered in the righl sacroiliac area to left tilt. He did nOl have any lendemess at the greater lrochanters. He did not have any tenderness at the left buttock but at the right buttock he did indicate having some discomfort to palration. There is a measurable difference between his calvcs 44 cm right and 46 cm left. His muscle funclion as prcscrvcd Wilh nonnal strcnglh of thc hip abductors. hip adductors, and hip ncxors, hip extcnsors, quadriceps, hamstrings. and ankle and toc motors. I do not have any cxplanation for the dimunilion inlhe right calf circumfcrcnce, pcrhaps bcing associatcd with his old right knce proccss. Straight leg raising was negalive 10 90'. Knees and ankles are symmctrical. ScnsibililY is prescrved in both lower cxtrcmitics butlhcre was a subjective pcrccption of tingle in the plantar aspccl of bO~1 hccls and onlhc lalcral dorsal aspecls of both feet. I did look al thc bottoms of bOlh of his fcct and thcrc arc no dystrophic nor alrophic changcs. The configuration of his fcct is wilhin normal Ii mils. His gait in nonnal rcciprocal and he is ablc to othcrwise on his hccls and tocs wilh normal facility. RE: DATE: PAGE: Scott Paxton Seplember 23, 1997 4 In so far as lhe etiology of Mr. Paxton's symploms, I do accept that some discomfort was associatcd wilh thc June 11, 1996 occurrcncc. Howevcr, I am seeing him approximalely 15 months subsequcntlo thc incident. An incidcnt which really is nOI significant. ThaI an unfused ring apophysis was rcvealed on lhe early x-rays and was mislakcn for a fraclure was a misperception, and not controlling nor dispositive of a worrisomc proccss. In so far as whcth~r his difficulty might bc duc to a prcvious trauma or a congenital abnormality, the answer is ncithcr. Thc radiographic appearancc was ancicnl but I have no reason to dispule thaI somc discomfon may havc bccn associatcd with thc new occurrcnce of June II, 1996. However. lhc factlhat onc has an cpisodc of discomfon on onc panicular date. such as Junc II, 1996 does nOI eSlablish that for the rest of his life cvery subscquent back ache would be sccondary to that single event, such would not be in kccping with an undemanding of how thc back works. 3. There is no requircd trcalmcnt for the incidcnt of June 11. 1996 on an ongoing basis. Please note howcver, that back pain occurs on a episodic basis. That is 10 say that if you bcnd ovcr the wrong way or slip on ice or havc a car accidcnt or a ncw fall of onc or another. a ncw cpisodc of back pain may occur to lhc eXlcnt that Mr. Paxton would wish 10 minimize his episodes of back discomfort. he would obscrve propcr body mcchanics when he docs any lifting or exenion. He would loss wcighl and would do conditioning cxcrciscd 10 improve his capability for physical endcavor. By such mcans he could minimize his future cpisodcs of back discomfon. Obviously, losing weighl and doing conditioning exerciscs docs nOl prevent you from having back pain from a ncw slip and fall or from a ncw car accident, but. 10 obtain idcal physical condilioning sccms to me to bc a rcasonablc goal evcn if such is not an absolute protection against additional back pain. 2. 4. I do not have any restrictions to offcr Mr. Paxton with rcspccllO his work activities based on the Junc 11. 1996 occurrencc. 5. In so far as symptom magnificalion, I do not considcr lhat such is truly prescnt but I do believe that Mr. Paxton was misinformcd. Obviously, if somconc 1clls you thaI you have a brokcn back, it is a bit more significant than if somconc tclls you you havc a back sprain. He did not have a broken back (that is no fraclure was sustained) and nothing more than whal sccms to be an innoccnt cpisodc of mechanical back pain bcfell Mr. Paxton. 6. Thc boltom linc thcn is thaI he has fully rccovcrcd from thc June II, 1996 cpisodc in my considcrcd opinion and lhatlhcrc is no lingcring dcficicncics causcd by the incident of June II, 1996. 39 1 A No. Have you ever seen a form similar to that 2 Q 3 before? 4 A No. 5 Q Have you ever been asked to inspect a trailer 6 when it was delivered to True Temper? 7 A No. S Q I understand from your Answers to 9 Interrogatories that you were unable to work from June 11th, 10 1996, through December 1997; is that correct? 11 A December of '96, 12 Q December of '96. Then did you go back to work 13 part-time in December of '96? 14 A I did two weeks at four-hour days and two weeks 15 at six-hour days. Then I think January 2nd I went back to 16 eight-hour days -- of this year. 17 Q To eight-hour days? 18 A Yeah. 19 Q Is that what you were working prior to the 20 accident? 21 A No. We were working 60-, 70-hour weeks. 22 Q Why are your hours reduced now as compared to 23 before the accident? 24 A Because the doctor doesn't feel I can take the 25 60-, 70-hour weeks yet. 40 1 Q Has he indicated to you when you might be back 2 to full strength? 3 A No. 4 Q So right now you're working eight-hour days? 5 A Yes. 6 Q Are you operating a forklift during that time? 7 A Yes. 8 Q Out of a typical eight-hour day, how much of the 9 day are you operating a forklift? 10 A Now, probably seven hours. 11 Q Since June 11th, 1996, when was the first time 12 that you started operating forklift again? 13 A Mid-February of this year. 14 Q February of this year until the present have you 15 fallen through the floor of any trailers while you were on a 16 forklift? 17 A No. 18 Q Have you known anybody else that has? 19 A No. 20 Q Have you ever been injured on a forklift in any 21 other way? 22 A No. 23 Q You listed Mary Paxton and Ron Reisinger as 24 trial witnesses. What is your wife going to testify about? 25 A Just about my loss of my personal -- you know, I 1J(~1 I ~ 200JlJ ORIGINAL t Plaintiffs, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 97-492 i' , SCOTT L. PAXTON and MARY PAXTON, his wife, v. H.C, GABLER, INC., Defendant, : CIVIL ACTION - LAW '\ v. FRUEHAUF CORPORATION, Additional Defendant : JURY TRIAL DEMANDED PLAINTIFFS' MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT H.C, GABLER. INC.'S MOTION TO DEEM CERTAIN FACTS AS ADMISSIONS AND IN SUPPORT OF HIS MOTION TO FILE ANSWERS NUNC PRO TUNC I. COUNTERSTATEMENT OF FACTS Defendant H. C. Gabler, Inc. (hereinafter "Defendant") served a Request for Admissions on the Plaintiff on August 14, 2000, requesting that Plaintiff Scott L. Paxton (hereinafter "Plaintiff") admit that he has no evidence that he regularly worked overtime for the two years preceding the accident on June 11, 1996, and that Plaintiff has no evidence that he was unable to work overtime after the accident on June 11, 1996, as a result of injuries sustained in the accident. In addition, Plaintiff was requested to admit that there are no medical records or doctor's notes supporting his contention that he could not work overtime after the accident, or that he is currently unable to work overtime as a result of injuries sustained in the accident. At the time these admissions were requested, Defendant was in possession of a transcript of the Plaintiff's deposition taken on October 1, 1997, more than one year following his accident of June 11, 1996. At that deposition, Plaintiff testified that he was working 60 to 70 hours per week prior to III. ARGUMENT Plaintiffs counsel concedes that he did not answer the Requests within the 30 days period. As a result, Defendant has moved to have the Requests deemed admitted. Plaintiff has a compelling reason why the motion should not be sustained. As indicated, settlement negotiations were ongoing and Plaintiff was in the process of attempting to obtain a review of Defendant's I.M.E. which, incidentally, was done by one of the partners of the Plaintiffs treating physician. In order to do so, a substantial amount of time was expended obtaining this review and Plaintiffs counsel did not suspect that he would be held to the strict 30-day time limit. In addition, there is no hard and fast rule that, in all cases, a failure to file answers to a request for admission invariably results in the facts being deemed admitted. In this respect, the case of Commonwealth v. Diamond Shamrock Chemical Co.. 38 Pa. Com. 89, 391 A.2d 1333 (Pa. Com. 1978) is instructive. Although the court did not grant the answering party relief in this case, it did set forth a clear rule which Plaintiff contends establishes the Plaintiffs right to relief. At 38 Pa. Com. page 94, the court observed that "If compelling reasons can be established by the moving party for its failure to timely respond and no oreiudice results to the adverse party, a nunc pro tunc application should be granted." Plaintiff has filed answers to the Request for Admissions contemporaneously with this brief. It is respectfully suggested that the Court should exercise its discretion and permit these answers to be filed. Inasmuch as this case has not been listed for trial and settlement negotiations are ongoing, the Defendant cannot show that it has been prejudiced in any way by a late filing of less 3 ..... , P-ST li. SCHELL, P.C. ATTORNEYS AT LAw JUN 29 m 240 GRANOVIEW AVENUE CAMP HILL. PA I 70 I I 171717.:)1'IQ7Q rACSIM1LC' 17111 7;)1-1065 IOOO.JQHN', K[NH[D'l'DL\ID PH.LADELPH..... PA 10103.7<400 121&1807'1000 'A:1I. '21&1887'1444 ADAMS PlACE . SUm: .3 70 I WHITt HORst ROAD VOORHt~,~ 00043 co DOl 027'8000 'AX UI~el eZ7'44!!11 124& 5 CEDAR CRC:lT OOUU:VAno SUm: 300 AU!UTOWN. PA 10103 UUOl4330103 'AX. 10101433,3072 18!101 'ML.UAM ""'iN WAY PO oox IOZ040 ~NCA!1T[R. PA I 7&0&.0248 17111 2Q 1'415:)Z ,.,u 17171Z01"8og nit oeRKSHIRE: . GUm: IO!) &0 I WMHltlCfTON ST'R[[l R!ADINO. PA 10003 U,IOI370'ZZB8 'AX 10101378-2203 June 28, 2000 AMY L. eo"n:A 17 I 71 e I 2-eDJO ACoItrI~r:.c...u..COM nLE NO, 020184020 Lee C, Swartz TUCKER, ARENSBERG & SWARTZ 111 N. Front Street P.O. Box 889 Harrisburg, P A 17108-0889 RE: Paxton v. H,C, Gablcr, Inc. Dcar Mr. Swartz: Please be adviscd my client is willing to extend an offer of 520,000 to settle this case. As you know, both Dr. Askin and Dr. Rychak are of thc opinion that all of your client's objective findings are all rclated to degenerative and pre-cxisting conditions. Your client sustained a lumbosacral strain with no evidence of disc herniation. Plcasc discuss this offer with your client and contact me at your carliest conveniencc. Thank you and Jlook forward to hearing from you in thc ncar future. Vcry tmly yours, O~<t( rt- G.(f1 Amy L. Corycr ALC/ TUCKER ARENSBERC "'') SWARTZ ~ " CELEBRATING ^ Cr,NHIRY 01 Sr.RVICI. Leo C Swalll Ir.'i\o,ul/Cluc"mla", corn October 3, 2000 Amy L. Coryer, Esquire Post & Schell, P.C. 240 Grandview Avenue Camp Hill, PA 17011 Re: Paxton v. H.C. Gabler. Inc. Our File # 15756/19174 i\lt t{\~~ Dear Amy: I am enclosing a letter from Dr. Malin which reinforces our position that Mr. Paxton did indeed sustain a fracture. If you are interested in attempting to resolve this matter please give me a call and perhaps we can come to an agreement on the case's value. As you are aware, there is over $20,000 in subrogation in this case. Sincerely yours, TUCKER ARENS BERG & SWARTZ ~ Lee C. Swartz LCS:as Enclosure 32833,1 1.1 NORTH FRONT STREET PO BOX 889 HARRISBURG. PA 17108.0889 717-23""21 800.257-4121 FAX 717-232-G8Q2 Pillsburgh . Plllsburoh Alfporl Aroa . lc......slown E-rMll lapcOluck(:llawcom www.tuckere.w.com TUCKER ARENSBER.....',& SWARTZ ~ , .. fiLE COpy leo C SwarlZ 1'''',l,'I/Otuc~(>IL.l\llr com Celf,/If-'" 015 .. Cw,I "...,1 Advocate by lho N.U/CXldlllodlc'oI r'ldl AdVUC.1cy CUlflRA1INCACiNIIIR\ orSI.RVIU October 9, 2000 Amy L. Coryer, Esquire Post & Schell, P.C. 240 Grandvlew Avenue Camp Hill, PA 17011 Re: Paxton v. H.C. Gabler, Inc. Dear Amy: I am enclosing copies of Dr. Malin's records. It would appear that at the time I began to work on this case as a result of the departure of two of my associates who worked successively on the file, Dennis Sheaffer of my office was handling the workers' compensation case. Since that time I have been able to retrieve the file and found Dr. Malin's records. I don't think that there Is anything else In the file that you don't have. You have Dr. Kalenak's and Dr. DeMuth's records and, thus, I believe that you have all of the treating physicians' records which I have. I apologize for the confusion. Incidentally, you will observe that Dr. DeMuth also believes that my client suffered a compression fracture and treated him for the same. My demand of September 3,1999, was $137,000. $70,000 of that was loss of overtime and $50,000 was for pain and suffering. Solely for the purpose of negotiating a settlement, I am willing to reduce the claim to $60,000. I recently learned that my client has been to see another orthopedic surgeon, Morton Rubin, who referred him to physical therapy at HealthSouth in Mifflintown. This referral took place in either March or April of 2000 and was a result of my client's continuing complaints of lower back pain. I have written for the records of these two healthcare providers and will send them to you upon receipt. Sincerely yours, TUCKER ARENSBERG & SWARTZ Lee C. Swartz LCS:pjg enclosures 21920.1 , , I" NORTH FRONT STREET PO BOX 889 HARRISBURG. "" 17'08-0889 7'7.234"'21 800-257"'2' FAX 717-232-8802 P1l1sburgh . Pltlsburgh AirpOfl Aroa . lC'Mslown E.mall lapcOtuckcrtawcom www.tuckertaw.com (b) Case law permits late filing under the circumstances where no prejudice can be shown and compelling reasons can be established; (c) at the time of the filing of the Request for Admissions, the parties were actively involved in attempting to negotiate a selllement; (d) during the settlement negotiations, the Defendant filed a report of an independent medical examination of the Plaintiff made by a partner of one of the Plaintiffs treating physicians: (e) the filing of the I.M.E. necessitated the Plaintiffs requesting a review of the I.M.E. and supporting x-rays by the Plaintiffs treating physician whose previous report had been contradicted; and (f) Plaintiffs counsel believed that as a result of settlement negotiations, the main thrust of the parties' communications were directed at attempting an amicable settlement and did not anticipate a "snap judgment" against him with respect to the failure to meet the 30-day deadline. WHEREFORE, Plaintiff respectfully requests the Honorable Court to permit the filing of Plaintiffs Answers to Defendant's Request for Admissions nunc pro tunc. TUCKER ARENSBERG & SWARTZ BY;~ ~Jc~ e C. Swartz I.D. No. 07258 111 N. Front 51., P.O. Box 889 Harrisburg, PA 17108 ATTORNEYS FOR PLAINTIFF